Nor are we aware that either as a matter of law or of fact, a person know the effect of great violence Every man is presumed to know he strike a blow with a dangerous who stands by should be presumed to as well as the person who inflicts it. the effect of his own acts, so that if weapon which causes death, he will be deemed to have known and intended the effect of the blow; but would this presumption in any way apply to or effect a beholder? We think not unless there had been a previous concert or arrangement between the actor and the beholder in relation to the subject. To render this prisoner Connaughty a principal in the second degree in the murder of Gullen, it was necessary to prove to the jury that he was not only an eye-witness of the infliction of the deadly blows, or present either actually or constructively, but also that he was "aiding in the commission of the offence," aiding and abetting the fact committed; that he countenanced or encouraged McDonald in the fact, or had some participation therein. Mr. Serjeant Hawkins, in his Pleas of the Crown, says: "Also those who by accident are barely present when a felony is committed, and are passive, and neither any way encourage it nor endeavor to hinder it. nor to apprehend the offenders shall neither be adjudged principals nor accessories: yet if they be of full age they are highly punishable by fine and imprisonment for their negligence, both in not endeavoring to prevent the felony and in not endeavoring to apprehend the offender."'1 In Russell on Crimes, we have the same rules expressed thus: "But a person may be present, and if not aiding and abetting, be neither principal nor accessory; as if A. happened to be present at a murder, and take no part in it, nor endeavor to prevent it or to apprehend the the murderer; this strange behavior, though highly criminal, will not of itself render him either principal or accessory.” 2 3 "Mere presence is not sufficient to constitute the party a principal without he aids, assists and abets. Thus if two are fighting and a third comes by and looks on, but assists neither, he is not guilty if homicide ensue. So also in Stephen on Crim. Law, it is held. "The aiding and abetting must involve some participation. Mere presence without (opposition) participation will not suffice, if no act whatever is done in concert, and no confidence intentionally imparted by such presence to the perpetrators." The same principle is found in all the writers on criminal law and is rigorously adhered to by the courts. On the trial of Charles Lord Mohun before the House of Lords in the year 1692,5 for the murder of William Mountford, certain ques 12 Hawk P. C., 442, sec. 10. 4 Vol. 3, p. 7. $ 12 How. St. Tr. 949, case 371. tions were submitted to the judges, whose answers distinctly show what the law on the subject of aiders and abettors in the crime of murder then was, and it has continued to be the same until the present day. The first question which we will notice was this: "A, conscious of an animosity between B. and C., A. accompanieth B. when C. happeneth to come, and B. killeth him; whether A. without any malice to C. or any actual hand in his death, be guilty of murder." The answer of Lord Chief Justice Holt, concurred in by the other justices, was: "As this case is stated, I do conceive that A. is not guilty of the murder, for it appeareth the meeting was casual, and there was no design in A. against C. and therefore though A. did know of the malice between B. and C. yet it was not unlawful for A. to keep company with B. but he might go with him anywhere, if it was not upon a design against C. Therefore I take it, as this case is put, that C. came accidental into the company where A. and B. were, and then without any design in A. B. killeth C. This is not murder, indeed, no offense in A.” Another of the questions propounded was this: "Whether if A. heard B. threaten to kill C. and some days after A. shall be with B. upon some other design, when C. shall pass by or come in the place where A. and B. are and C. shall be killed by B., A. standing by without contributing to the fact, his sword not being then drawn, or any malice ever appearing on A.'s part against C., whether A. will be guilty of the murder of C." And the answer of the Lord Chief Justice was: 66 My lords, I am of opinion that A. in this case will not be guilty of murder or manslaughter, for it doth not appear by the stating of the case that A. did consent to the design, or in any wise contribute to the fact." And all of the judges were of the same opinion. The only other question submitted to the judges to which we think proper to refer was as follows: "Whether a person knowing of the design of another to lie in wait to assault a third man who happeneth to be killed (when the person who knew of the design is present), be guilty in law of the same crime with the party who had the design and killed him though he had no actual hand in his death." To this the same learned judge replied: "My lords, I am of opinion, this is no murder or manslaughter; he that knew of the design of assaulting only happened to be present when the assault was made and the party killed; but if he did not contribute to his death he is not guilty of murder; * * but if the person that knew of this design did advise or agree to it, or lay in wait for it, or resolved to meet the third person that was killed, with him that killed him, it would be murder; but as this case is put it is neither murder nor manslaughter." In this opinion also all the judges concurred. By comparing the cases stated in these interrogatories with that which is presented by the bill of exceptions before us, we find that any one of them includes inculpatory circumstances not to be found in this case. No evidence was given that Connaughty knew of any unlawful design on the part of McDonald; indeed, the nature of the case precludes any such pre-concert. A midnight brawl upon the street near the dwelling of Connaughty attracted his attention; he went to his door, undressed and unarmed, and took no part in the assault upon Gullen by McDonald; he did not encourage it, but on the contrary, he told McDonald to go into the house and not be fighting.” Here is nothing to satisfy the mind that Connaughty" did consent to the design or in anywise contributed to the fact; "' for we find that the jury were distinctly told by the court that "Connaughty at the time was standing in his own door saying nothing." It is true, the learned judge before whom this case was tried, submitted the whole facts in the case to the consideration of the jury. On this subject, he told them that the whole evidence was before them, and they were to judge what was proved and what was the weight of the matters so proved; but taken in connection with other facts of the charge, we think that he erred in laying down the law applicable to the case of Connaughty, and that the charge taken together was calculated to mislead the jury as to the law of the case. The jury were told that "if he, Connaughty, was standing by within a few feet of the assailants, and if he did not interfere, or attempt by word or act to arrest the violence, it is a very strong circumstance against him; it may of itself satisfy you of his advising or procuring the blows to be inflicted." Surely this is not law. Bare presence is not sufficient. It may not and should not satisfy any mind of a participation in the crime; but there must be something else shown in the conduct of the bystander which unmistakably evinces a design to encourage, incite, approve of, or in some manner afford aid, or consent to the act. In the case of King v. Davis and Hull,1 it was held not to be sufficient to make Hull a principal in uttering a forged note, which Davis had passed, that he came to the town with Davis, left the hotel with him before the note was passed, joined him again in the street shortly after the passing of the note, and a short distance from the place where it was passed, and ran away when Davis was apprehended; and this was because " no concerted purpose was shown." On the trial of Young and Webber for the killing of one Mirfin in a duel, the jury were charged by Mr. Justice Vaughan that "mere presence alone will not be sufficient to make a party an aider and abettor, but it is essential that he should by his countenance and conduct in the proceedings, being present, aid and assist the principal." So in Queen v. Cuddy, Mr. Justice Williams, in summing up to the jury, said: "The question is whether prisoner was at the spot at the time and whether he took such a part as amounts, in the language of this indictment, to an aiding and abetting the principal offender." These cases and authorities to which we have referred as well as many others in both the English and the American books satisfy us that the Circuit Court erred in its charge to the jury,so far as it has reference to the case of this plaintiff in error; and we are also well satisfied that the instruction asked for by the counsel for Connaughty and refused by the court ought to have been given. It was entirely apposite to the case and was a correct legal proposition, with the exception of the improper use of the word "accessary" instead of "principal in the second degree." An accessary is one in some manner connected with the crime either before or after the fact, but who was not present at the time, while a principal in the second degree must be present either actually or constructively. Indeed, it may be found, word for word, with the exception above stated in Archbold's Criminal Pleas, cited from Hale and Foster. It is essential to the safety and well being of society that there should be certainty in the administration of the criminal laws, in order that crime may be punished and prevented, and thereby vice may be deterred and virtue promoted; but, perhaps, the most beautiful rule of our criminal law as laid down by Lord Hale,5 will be found to be in most cases a safe one: Tutius semper est errare acquitando, quam in puniendo; ex parte misericordiæ, quam ex parte justitiæ." The judgment of the Circuit Court is reversed and a new trial awarded. In the English Court of Crown Cases Reserved, April, 1875. A Stakeholder Who Takes no part in a fight with fists and is not present, and does nothing more than hold the money, and pay it over to the winner is not an accessory before the fact, to the manslaughter of one of the combatants who is mortally injured in the fight. Case stated by BRETT, J. William Taylor was tried before me at the Central Criminal Court, on the 8th of April, 1875, on a charge that he was an accessory, before the fact, to the manslaughter of one Dulgar by one Tubbs. It was proved that Tubbs and Dulgar had quarreled, and had in consequence agreed to fight with their fists; that in order to bind each other so to fight upon such quarrel, each put down a sum of £1, so that £2 might be paid to the winner; that the money was deposited with the prisoner as stakeholder, and that he consented to hold it as such until after the fight, and then to pay it to the winner. The prisoner did not in any way, otherwise than by so consenting to hold and pay over the money, promote or encourage either the quarrel or the fight. There was nothing then, or at any time before the fight, to lead any one to suppose, and the prisoner did not suppose, that the fight would endanger the life of either of the combatants. Tubbs and Dulgar fought on the 1st of February, 1875. The prisoner was not present at the fight. The fight was a fair fight, in which the men used only their fists. Until near the close there was no danger of death to either of them, and no reason to apprehend such danger. Towards the end Dulgar was advised to yield, but refused, and continued to fight. At last he yielded, and acknowledged that he was beaten. If Dulgar had not so continued to fight he would not have died, or have been in danger of dying. By so continuing to fight and thereby receiving further injuries from Tubbs, Dulgar became exhausted, and afterwards, in consequence, died. Tubbs was tried before me, and pleaded guilty to a charge of manslaughter, and was sentenced. After the fight the prisoner, on being told that Tubbs had won the fight, but without being told or knowing of Dulgar's danger, paid the £ 2 to Tubbs. I directed the jury, for the purpose of the day, that if the prisoner held the money for the purpose of handing it to the winner of the proposed fight, he was by that alone, in point of law, an accessory before the fact to the breach of the peace which subsequently took place; and, |